PURCHASE AND SUPPLY AGREEMENT
CERTAIN
PORTIONS OF THE EXHIBIT HAVE BEEN OMITTED BASED UPON A REQUEST FOR CONFIDENTIAL
TREATMENT AND ALL NON-PUBLIC INFORMATION HAS BEEN FILED WITH THE SECURITIES
AND
EXCHANGE COMMISSION
This
Purchase and Supply Agreement (“Agreement”) is entered into as of this __th day of March,
2007
(“Effective Date”) by Golden Hotels L-PSHIP (the “Purchaser”), having its
principal place of business at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇ Phone:
▇▇▇-▇▇▇-▇▇▇▇ and Royal Spring Water, Inc. (the “Supplier”) having its principal
place of business at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ TEL:
▇▇▇-▇▇▇-▇▇▇▇
RECITALS
WHEREAS,
the parties desire that
Purchaser buys and receives certain Flavored Bottled Water products according
to
the quantities ordered by Purchaser and solely for distribution by the Purchaser
or its agents/distributors; and
WHEREAS,
Purchaser desires to purchase
and Supplier desires to provide Flavored Bottled Water with the ILUM label
in
such quantities as specified herein;
NOW,
THEREFORE, in consideration of the
foregoing and the mutual promises contained herein, the receipt and sufficiency
of which is hereby acknowledged, the parties agree as follows:
AGREEMENT
1. Definitions.
1.1 “Agreement”
shall have the meaning set forth in the first paragraph set for the
above.
1.2 “Purchaser”
shall have the meaning set forth in the first paragraph above.
1.3 “Product(s)”
shall mean the private label Flavored Artesian water (ILUM Label), packaged,
labeled and supplied to Purchaser pursuant to the specifications contained
herein.
1.4 “Prices”
shall mean the prices for Product(s) as set forth in Schedule A
the “Purchase Order” attached hereto and made part hereof.
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10.8
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“Supplier”
shall mean the Royal Spring Water Inc. producing the Product(s) for
sale
to the Purchaser.
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10.9
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“Delivery
Date” shall mean with respect to a Purchase Order, the date on which the
Supplier is required to make a specific quantity of the “Product(s)”
shipped to a specific location as set forth on the Purchase
Order.
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1.8 “Laws”
shall mean any statute, law, regulation, ordinance, rule, judgment, order,
decree, permit, concession, grant, franchise, license or rule of common law,
requirement of, or other governmental restriction or any similar form of
decision of or determination by, any national, state, or local government (or
any association, organization, or institution of which any of the foregoing
is a
member, or to whose jurisdiction any thereof is subject, or in whose activities
any thereof is a participant), whether now or hereafter in effect.
1.9 “Purchase
Order” shall mean Schedule A which specifies a purchase order
number, quantity of Product(s) ordered, a price, and delivery date at a specific
location.
1.9.1 “Territories”
shall mean those countries, territories, protectorates or other geographical
areas set forth in Schedule B attached hereto and made a part
hereof.
2. Term
of Agreement.
2.1 The
Term of this Agreement shall begin on the date the Agreement is fully executed
and for a period of Two (2) years or 730 days, immediately and consecutively
thereafter.
2.2 The
term of this Agreement shall be extended automatically for an additional term
to
begin immediately after the expiration of the initial term unless otherwise
agreed by the parties hereto, and subject to a mutually agreed on price for
the
third year extension.
2.3 Any
request, whether by Supplier or Purchaser, requesting termination of this
Agreement after the initial term of two years, must be in writing and delivered
to the other party hereto not later than thirty (30) days prior to the
expiration of the original term.
3. Ordering
and Packaging.
3.1 Orders. To
purchase Product(s)
hereunder, Purchaser shall issue its Purchase Order(s) to Supplier, see
Schedule A, which shall specify on the Purchase Order, the
number, description of Product(s), quantity of Product(s), Price, Delivery
Date,
and shipping instructions. It is agreed that during the two year term
of this agreement, the total cases on the purchase orders will be for no
less
then *||||||||||||||
cases
of private label Flavored Artesian bottle water. Each case will have
||||| * (500ml)
bottles with the Ilum Label. Each case will be shrink wrapped and
their will be *|||||
cases per
pallet.
3.2 Cancellations. Purchaser
may only cancel
this agreement only in the event of breach of representation or warranty by
Supplier to perform its obligations under this Agreement. Upon
written notice to the Supplier not less than ten (10) days prior to the next
Delivery Date. In the event of cancellation letter Supplier will have
ten (10) days to cure any such breach. The parties agree to act in
good faith to resolve all disputes.
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3.3 Packaging. Product(s)
supplied by
Supplier shall be made available in cases that are shrink wrapped with a
corrugated case, with packaging material in place that reasonably protects
the
Product(s) from damage or breakage.
3.4 Labeling. Supplier
is responsible
for labeling the Product(s) and the packages as may be required for
shipping. The labels shall comply with all applicable federal, state,
and local laws, ordinances and regulations for the Territories designated in
Schedule B. Art work for the label to be provided by
purchaser. Supplier shall manufacture the label approved by the
purchaser. Supplier shall acquire no rights of any kind in
or to any of supplier’s trademark(s), service ▇▇▇▇(s), trade name(s), logo(s),
labels, or product designation and shall not make any use of the same for any
reason except as necessary to comply with the packaging and labeling
requirements unless otherwise agreed by and between the parties as set forth
in
Schedule C. .
4. Shipment
and Inspection.
4.1 Shipping
and Delivery. ALL Prices are
FOB at purchasers
loading dock. Supplier
shall notify Purchaser at the time of shipment of the product as to the quantity
picked up, if different than that which is set forth on the Purchase
Order. Shipping quantities may not vary from those established by the
Purchase Order unless otherwise mutually agreed upon in writing by the
parties.
4.2 Title
and Risk of Loss. All products
are
FOB.
4.3 Inspection
upon Delivery. If merchandise/product
is deemed to be faulty upon receipt, it will be returned to the point of origin
or replaced for no extra cost.
5. Price
and Payment.
5.1 Price. The
Product(s) Price for
purposes of this Agreement shall be as set forth in the Purchase Order, see
Schedule A, which is attached hereto and made part
hereof.
5.2 Changes
in Price. During the term
of this
Agreement, Supplier agrees that the Product(s) Price will not be increased
for a
period of One (1) years. Thereafter, the Product Price increase if
any, shall be negotiated in good faith.
5.3 Payment
Terms. Supplier shall
invoice Purchaser
for the full amount due and such invoices shall reference the Purchaser’s
Purchase Order number and be sent to the “▇▇▇▇ to” address specified on
Purchaser’s Purchaser Order. Supplier’s packing list must reference
the Purchaser’s Purchaser Order number and be sent to the Purchaser's address on
Supplier’s Purchase Order number. Purchaser agrees to pay the
Supplier for the Product(s) produced by the Supplier with in net 30 days of
the
arrival of the product to purchaser.
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6. Product
Development and Promotions.
6.1 Purchaser
permits supplier or its bottler to announce this deal in a press releases,
which
will include the fact that supplier has signed a two (2) year supply agreement
with the purchaser and or that the bottler has received a purchase order from
supplier for the supply to purchaser.
7. Licenses
and or Labels
10.8
Purchaser
represents that it owns its labels and all intellectual property on the
label.
7.2 Supplier agrees to
provide labels for the Product(s) that comply with all applicable federal,
state
and local laws, rules and regulations. Any material changes in the
Product(s) or packaging is subject to prior approval by the Purchaser whose
approval shall not be unreasonably withheld.
9. Confidentiality
During
the term of this Agreement and
for One (1) years after its termination or expiration, neither Purchaser nor
Supplier, nor any of their employees or agents shall disclose or make accessible
to anyone or make use of for its own benefit, other than what is consistent
with
the terms and conditions of this Agreement any knowledge or information that
it
has obtained from the other concerning recipes, formulas, customer lists,
pricing, marketing plans, business procedures and methods, or other trade
secrets or intellectual property.
10. Representations,
Warranties and Covenants of Supplier
10.1
Supplier represents, warrants and covenants that the Product(s), packaging
and
labels delivered to Purchaser are the same as those set forth in the applicable
Purchase Order and:
10.8 The
Product(s) will be sold to Purchaser at the prices set forth in Schedule
A, or as otherwise provided for by this Agreement.
10.4 The
Product(s) will be on a FOB at purchaser’s address in a timely manner or as set
forth in Schedule A.
10.5
Will notify Purchaser of any changes to the Purchaser Order prior to
delivery.
10.6
Will notify Purchaser promptly of any interruption in Supplier’s source of
supply or Production which may affect its ability to perform under this
Agreement.
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10.7
Will have good and merchantable title to the Product(s) free of any liens or
encumbrances at the time of delivery.
10.8
The
trade names, trademarks, logos, labels or other intellectual property used
by
Supplier are owned or licensed by the Purchaser and does not infringe upon
any
other person or entities rights.
10.9
Compliance
with Law Generally. Supplier represents,
warrants,
and covenants that Supplier is in compliance with all laws applicable to its
Product(s), trade names, trademarks, logos, labels or other intellectual
property.
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11. Indemnification.
11.1 Suppliers
Indemnification. Supplier
agrees to
indemnify, defend and hold harmless Purchaser, its affiliates, customers,
employees, officers, directors, agents, attorneys, representatives, successors
and assigns from and against any losses, liabilities, costs, damages, claims,
firms, penalties, and expenses (including without limitation, costs of defense
or settlement and reasonable attorney consultant’s and expert’s fees that arise
out of or result from (i) any breach of representation or warranty by Supplier
or failure of Supplier to perform its obligations under this Agreement; (ii)
violation of any law, including but not limited to those laws governing the
use
of trade names, trademarks, logos, labels or other intellectual property, in
any
way arising out of or caused or alleged to have been caused by Supplier’s
Product(s), packaging or labeling under this Agreement.
11.2 Purchaser’s
Indemnification. Purchaser agrees
to indemnify,
defend and hold harmless the Supplier, its affiliates, employees, directors,
agents, representatives, successors and assigns from and against any losses,
liabilities, costs, damages, claims, fines, penalties and expenses including,
without limitations, costs of defense or settlement and reasonable attorney’s,
consultant’s, and expert’s fees that arise out of or result from any breach of
representation or warranty by Purchaser to perform its obligations under this
Agreement.
11.3 Insurance. During
the term of this
Agreement, Supplier shall obtain and maintain in full force and effect liability
insurance with limits of not less than
US$
1,000,000.00 (One Million) insuring against all liabilities arising out of
the production, manufacture or consumption of Product(s) covered by this
Agreement.
12. Termination.
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12.1 Termination. The
parties may terminate
this Agreement (i) by mutual agreement only in the event that the
other party breaches any material provision of this Agreement and such breach
continues for a period of twenty (20) calendar days following the receipt by
the
defaulting party of notice of such breach; or (iii) in the event that the other
party becomes insolvent, is adjudicated bankrupt, voluntary or involuntary
files
a petition of bankruptcy, makes an assignment for benefit of creditors, seeks
any other similar relief under any bankruptcy law accordance with the terms
of
this Agreement, and such judgment, assignment or incapacity is not revoked
with
sixty (60) calendar days.
13. Miscellaneous.
13.1 Purchaser’s
First Right of Refusal. N/A
13.2 Remedies. The
parties agree that
any breach of this agreement may cause irreparable harm and significant injury
to the other party which may be difficult to ascertain. Accordingly,
the parties agree that each party shall have the right, in addition to any
other
remedies, to obtain an immediate injunction enjoining any breach by the other
party. Notwithstanding anything in this Agreement to the contrary,
Supplier and Purchaser shall be entitled under this Agreement to all of the
rights and remedies available to a contracting party under the Uniform
Commercial Code.
13.3 Assignment. Neither
Supplier nor
Purchaser shall assign this Agreement or the sub purchaser agreement or any
interest therein, without the prior written consent of the other party to this
Agreement.
13.4 Governing
Laws. This
Agreement shall be deemed to be made under and shall be governed by the laws
of
the State of Nevada without giving effect to any choice of law rule that would
cause the application of the laws of any jurisdiction other than the internal
laws of the State of Nevada to the rights and obligations of the
parties. Any action or proceeding arising out of or relating to this
Agreement shall be brought in the state or federal courts situated in Nevada,
Nevada and each party hereby submits to the jurisdiction and venue of any such
court in any such action or proceeding.
13.5 Non-Waiver. Failure
by either party
to insist upon strict performance of any of the terms and conditions hereof,
or
delay to exercise any rights or remedies provided herein shall not release
the
other party from any of the obligations of this Agreement and shall not be
deemed a waiver of any rights of such other party to insist upon strict
performance thereof.
13.6 Attorney’s
Fees. In
the event either party brings legal action to enforce any provision herein,
the
prevailing party shall be entitled to collect from the losing party reasonable
attorneys’ fees and costs incurred.
13.7 Entire
Agreement and Modification. No agreement or
understanding in
any way modifying these terms and conditions, either before or after the
execution hereof, shall be binding upon either party unless in writing and
signed by both parties.
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This
Agreement, together with any specifications and documents attached hereto and
incorporated by reference, constitutes the entire agreement between the parties
with respect to the subject matter hereof and supersedes and merges all prior
or
contemporaneous proposals, discussions, negotiations, understandings, promises,
representations, conditions, communications and agreements, whether written
or
oral, between the parties with respect to such subject matter and all past
courses of dealings or industry custom. In the event of any conflict
between the terms and conditions of this Agreement and those of any quote,
order
acknowledgement, purchase order or any similar document, the terms and
conditions of any Purchaser Order and any other document, the terms and
conditions of the Purchaser Order shall control. Except with respect
to quantity, delivery date and place of delivery, no additional terms or
conditions in any purchase order or any other document shall be binding upon
either party unless mutually agreed upon by the parties.
13.8 Severability. If
any one or more of the
provisions contained in this Agreement shall, for any reason, be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality
or
unenforceability shall not affect any other provision hereof, and this Agreement
shall be construed as if such invalid, illegal or unenforceable provision had
never been contained herein.
13.9 Notice. Any
notice, request,
demand or other communication required or permitted hereunder shall be in
writing and, unless otherwise set forth herein, shall be sufficiently made
or
given when delivered personally, or on the date of mailing if sent via
registered mail or other traceable delivery, postage prepaid, addressed to
the
other party at such party’s address set forth below or as such party shall
designate by written notice.
If
to
Purchaser:
If to Supplier:
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇,
▇▇.
92612 ▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇
Phone:
▇▇▇-▇▇▇-▇▇▇▇
Phone: ▇▇▇ ▇▇▇ ▇▇▇▇
13.10 Headings. The headings of the Sections in this Agreement are for convenience only and shall not be deemed to affect, qualify, simplify, add to or subtract from the contents of the clauses which they reference.
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THIS INFORMATION HAS BEEN REDACTED FROM THIS AGREEMENT BASED UPON THE
COMPANY’S
REQUEST FOR CONFIDENTIAL TREATMENT OF SUCH INFORMATION. ALL NON-PUBLIC
INFORMATION HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their authorized representative.
PURCHASER: SUPPLIER:
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By:
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/s/▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
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By:
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/s/▇▇▇▇▇▇
▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇
▇▇▇▇▇▇▇
Title: General
Manager
Title: Sales
Director
Date:
4/16/07
Date: 4/12/07
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SCHEDULE
A
PRICES
Bottle
size – 16.9 oz
Flavor
Water Bottler – Royal Spring Water Inc.
Private
Label – ILUM
Cap
–
Flat
Bottles
per case – *|||||
with shrink
warp.
Price
per
Case – *|||
|||||||||||| FOB
Golden Hotels warehouse
Address
for the Delivery
Flavors
–
Lemon, Raspberry, Peach
PAYMENT
TERMS
Net
30
from delivery of each shipment
The
first
PO to be issued upon signing of this agreement.
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SCHEDULE
B
Territory
For Sale of Products
United
States
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SCHEDULE
C
N/A
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SCHEDULE
E
The
following is a list of Product(s)
provided by Supplier and purchased by Purchaser that are subject to the terms
and conditions of the Purchase and Supply Agreement.
Products
- Flavored Artesian Bottle water
Bottle
Size - 500ml (16.9oz)
Case
-
*|||||
bottles per
case.
Annual
Quantity - *||||||||||||||
cases. Total contract quantity – *||||||||||||||
cases
(labeled with ILUM label, each case shrink wrapped with a corrugated
case)